State X And The Outer Space Treaty

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Summary of Facts In February of 2006, State X claimed a 1000 square kilometer surface area on the moon as part of its territory and therefore subjected to its territorial jurisdiction. Soon after claiming the territory, State X began to construct permanent structures on the moon for the purpose of researching and mining resources. Furthermore, with the newly acquired resources, State X intended to use it to boosts its own economy.
The issue and lawsuit raised by State Y, which is representing not just itself, but all of the parties to the Outer Space Treaty of 1967, is that State X although not a party to the Outer Space Treaty, is still subject to it as a result of article 1 and article 2 of the treaty being deemed Jus Cogens or
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Firstly, in the Vienna Convention on the Law of Treaties, it highlights the concept "Pacta Sunt Servanda" (The United Nations, 1969, art. 26). What this means is that the treaty is binding to all of the parties that are signed to it. In other words, according to this principle, State X is not bound by the Outer Space Treaty. This idea is later and clearly reinforced in article 34, where it states that "a treaty does not create obligation…for a third State without its consent" (The United Nations, 1969, art. 34).
However, like mentioned above, through article 36 of the treaty, it is possible that a third party state may be compelled to act in accordance with the treaty if it satisfies two conditions. The first condition is whether at the time of creation of the treaty, did the parties creating the treaty intend for it to apply to all states (The United Nations, 1969, art. 36(1)). If we examine the Outer Space Treaty of 1967, we can easily see that the parties creating the treaty did indeed intend for it to be applied to all states since contains within the first two articles keywords such as "all mankind" (Ferreira-Snyman, 2015, p.497). Furthermore, within the treaty, it says that space is open for exploration to all (Ito, 2011). Words such as “all” here will mean that it applies to every state, not just states partied to the treaty.
As a result of this, I would definitely agree that

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